12.06.16

Summary: A roundup of today’s outcomes from the US Supreme Court, which intends to review and decide on important patent cases

THE evolution of patent law helps determine the rate of innovation and competition. It’s not as simple as “more patents” mean “more innovation”. In fact, some patents help protectionism and actively impede innovation, so these cases are important, especially when they are decided by Justices in the US.

The four winners are: the US Food and Drug Administration for an improved meningitis vaccine; the Global Good Fund at Intellectual Ventures for a cooler which can preserve vaccines for over a month without outside power source; Case Western Reserve University for creating a low-cost, accurate malaria detection device using magnets and lasers that allows better diagnosis and treatment; and GestVision Inc. for developing a quick, simple diagnosis test for preeclampsia, a potentially life threatening pregnancy complication, for use in developing regions.

Oral arguments in Life Technologies v Promega are due to take place tomorrow in the US Supreme Court to determine whether the US Court of Appeals for the Federal Circuit correctly defined “substantial portion”.

The Supreme Court has agreed to hear a closely watched patent case that will determine whether someone can import into the United States and resell a U.S.-patented article purchased abroad.

Generally, the buyer of a patented product has the right to resell that product to a third party, but the case here stems from printer cartridges that Lexmark International sold on the condition that they not be resold.

Lexmark brought a federal complaint in Ohio several years ago, saying Impression Products had acquired its spent cartridges abroad, refilled them and resold them.

For those cartridges that Impression imported into the United States, the products were priced more cheaply than Lexmark charged.

Summary: The infamous father of patent trolling is dead, so we need to remember his real legacy rather than rewrite his history to appease his rich relatives (enriched by destroying real companies)

SEVERAL years ago we wrote a lot of articles about the thug and troll Ray Niro, whose ugly legacy we summarised in this Wiki page. We have hardly heard his name for years, but today IP Katpays respect to this father of patent trolling as if there is a duty to say something nice because he is dead. Our own list of articles about him can say a lot about how horrible a person he was, but obituaries in news sites are unbelievable pieces of hogwash. Won’t they just stop eulogising this thug?

Just because he’s dead doesn’t mean he was benign or even benevolent. He was a malicious person. As someone has just put it in relation to Acacia: “Argh. F****** patent troll. Fired people & sued people who actually made stuff, hence profitable quarter. Patent trolls…”

Niro was the initiator of all this. He has had so many victims. He has done enormous damage to the US, which is now infested by trolls. Speaking of which, IAM and their troll friends, who are hoping to expand in China (and are succeeding at that to some degree), have come to China with their agenda. Once of Intellectual Ventures, the world’s largest patent troll which is connected to Niro, Blumberg played a role in IAM’s extravaganza in the East. To quote the relevant part:

Talking trolls – While the debate around ‘patent trolls’ using poor quality patents to extract low value litigation settlements has dominated IP policy discussions in the US, there has been relatively little focus on it in China. To what extent that might change was brought up in the second plenary session today by Lenovo’s head of IP Ira Blumberg. Asked by session moderator Brian Hinman, the chief IP officer of Philips, to identify the things that keep him up at night, Blumberg said that his long-term concern was that if patent damages awards continued to increase, the number of patents available to buy continued to grow as a result of widespread filing and with preliminary and permanent injunctions available, then ‘patent trolls’ could become a major problem in the Chinese market. “If handled in the wrong way China could be beset by trolls,” he commented. As well as the prospect of higher damages and the growing threat of patent owners obtaining injunctive relief, the real threat to the Chinese market stems from the fact that it is such a large manufacturing hub. That gives patent owners great scope to disrupt a company’s production facility or its supply chain and might mean foreign and local businesses start to look to other jurisdictions to make their products. “If courts give out big awards then the natural reaction will be for companies to relocate their manufacturing,” Blumberg warned. “China needs to be very careful about how its patent system develops.” Once of Intellectual Ventures, Blumberg has become a vocal critic of trolling over recent years. As we have seen in the US, though, the problem with focusing on finding solutions to combat the perceived threat this business model poses often ends up causing a lot of unintended harm. The Chinese authorities would do well to consider that when they hear the kinds of dire warnings issued by Blumberg this morning. He does have a point, but careful, nuanced policy-making is perhaps the best way to solve any problems that arise. Looking to Europe, rather than the US, and finding out why there is no real troll problem there may also be a good idea. What is clear, though, is that as the Chinese patent litigation market does become more high-profile and more high-stakes, the troll debate is going to have to take place in the country.

This disease which is patent trolls needs to be purged. We can only remember Niro as the horrible person who started this disease. After his death many can breathe a sigh of relief, but his death alone isn’t enough to make his legacy of trolls go away. █

Summary: A rebuttal to some new articles about patents, especially those that strive to increase patent-related activities (usually for personal gain)

THE scope of patents in the US has been tightened by the US Supreme Court under Obama, but there is a growing threat — and belief among patent maximalists — that things will change under Trump (perhaps premature to speculate about this). PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).

According to this new article, the “Supreme Court Patent Cases Haven’t Hindered Diagnostics Innovation, Preliminary Data Suggest” (article behind paywall). They might be referring to cases like Mayo (Supreme Court) and they need to stop conflating patents with innovation. In some cases, not only do patents contribute nothing to innovation but they actually harm innovation.

“PTAB is at stake, Alice is at stake, and perhaps more aspects related to AIA and the Supreme Court (where vacancies exist for Justices, not just because of Scalia’s death).”Gary D. Colby, writing for the New Jersey Law Journal (behind paywall), has just published and repeatedly pushed an article titled “Software Patent Eligibility May Be Informed by Copyright Law”. The summary/outline says “Dissents in two recently decided cases suggest that patent eligibility of “intangible” inventions finds analogies in copyright eligibility.”

Well, software developers want only copyright to protect their code. Many polls/surveys keep showing this, yet the patent microcosm ignores the findings and pretends that software patents are desirable (to the litigation industry they are definitely desirable, but at whose expense?).

As soon as the week started the patent microcosm started commenting on PTAB and “inventorship” (something the lawyers never did, they only speak about it). To quote the concluding part, “until the PTAB rules definitively that inventorship error is not a ground on which PGR may be based, it is our view that failure to raise that ground in a petition will most likely lead to an estoppel on the issue. See 35 U.S.C. § 325 (e). Thus, for now, any PGR petitioner that thinks it might have a possible basis for challenging inventorship better raise that ground in its PGR petition or risk being estopped from later challenging the patent on that basis.”

“Well, software developers want only copyright to protect their code.”The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship. These sorts of fairy tales that are perpetuated ad infinitum in legal blogs do a lot of harm and software patents propagandists (who do not even know how software works!) call reformists the “patent infringer lobby” because they are trying to undermine Alice and the likes of it. See this disgusting latest article from Watchtroll for example. What is this? Is Watchtroll some kind of a troll? A spokesperson for patent trolls?

As expected, for the fiscal year ending on October 31, 2016, the Federal Circuit docketed more appeals arising from the U.S. Patent and Trademark Office than from the district courts. This result will almost certainly hold true for the calendar year as well: from January through October of this year, the Federal Circuit received 471 appeals arising from the district courts and 560 appeals arising from the PTO.

That’s because of PTAB, which is a growing force after AIA (the catalyst that introduced it). Some patent maximalists now use this as an excuse to weaken or lobby to altogether eliminate PTAB, bemoaning the ‘flood’ of appealed PTAB cases (examinations/IPRs) as though it justifies anything but more (new) hirings at CAFC. As is the case with programming (code), sometimes it requires more work to actually remove code than to add/write new code. In this case, what the USPTO needs is less patents, not more patents. It’s worth investing money in invalidation of bad patents. Sometimes less is more (or better quality of patents, higher certainty and so on).

“The term “inventorship” totally misses the point that patents are granted not necessarily for inventorship.”The US is currently in the process of cleaning up a mess created (or culminating) in the David Kappos era and thankfully we now see software patents being invalided by the thousands and patent lawsuits (including the majority of which that are filed by patent trolls) in a freefall.

Imagine one of those infamous panels about poverty and hunger in Africa, where not a single person on the panel is African…

Excluding voices so as to include more patents (wider scope)

Summary: A look at yesterday’s “Roundtable on Patent Subject Matter Eligibility,” which lacked involvement from those actually affected by patents rather than those who sell, trade, and exploit these

ABOUT 24 hours ago the USPTO tried to pretend to be transparent by broadcasting a debate which was barely open to participation (read only, not read/write). As can be expected from such an event, key voices or views were prominently and conspicuously absent. “HAPPENING NOW,” the USPTO wrote in Twitter“, was a “talk on #patent subject matter eligibility until 4 pm ET today. Watch the livestream…”

“Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm?”How about actually speaking with them rather than being mere spectators? Were there any “real software developers [...] on the panel?” That’s what Benjamin Henrion rightly asked them because, as he later put it, “if you can follow the live stream, not many developers around.”

“It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect.”We remind readers that Amazon is among the pushers for software patents. Was there anyone at this debate who does not work for a multi-billionaire like Bezos or some law firm? Where are the actual developers? Their voice does not seem to matter at all when laws that apply to them are discussed. Henrion asked Nazer (not a developer), “are you on the chat?” Nazer never responded, but we’re generally used to this kind of conceited (high horse) attitude from EFF lawyers.

Either way, Henrion streamed the debate into a file and proceeded to YouTube uploads because “[t]he videos don’t play in Chromium, maybe MP4 patented format is to be blamed.” (which would be ironic!)

See herein the debate as it was uploaded, having been divided into four parts:

It sure seems like a lot of these ‘debates’ are happening in the absence of those whom they affect the most. To the organisers, that’s a feature, not a bug. Bias by design/composition. We see a lot of that in UPC panels/events/debates/consultations and here we have it when patents on software are at stake. Published earlier today by Juristat (targeting “patent lawyers”, based on its own account description) was this slide about “pros and cons of software patents”; well, judging by their Twitter activity, Juristat is more like a Trojan horse that would not tell the complete story about software patents as there are “many more arguments against them,” to quote Henrion’s response, than there are for them (profitable to patent lawyers etc.), as any software developer can probably tell. █

Summary: A look at some recent articles regarding patent quality in the US and in Europe, in particular because of growing trouble at today’s EPO, which marginalises the appeal boards

THE QUALITY of patents determines the likelihood of winning court battles, or the certainty of sustained validity of patents once scrutinised closely enough (e.g. subjected to evidence/witness testimony in a court). Good examination with comprehensive prior art searches is what applicants ought to pay for; patents that are granted in haste are possibly worthless. Sometimes they can be worse than nothing at all. In fact, going to court with such patents can prove very costly to the plaintiff, which sometimes gets forced to pay the legal fees of the defendant/s (we covered some examples like that earlier this year).

With Alice and Mayo in a couple of domains (among many) the USPTO shows some encouraging signs of improvement. According to this new blog post, increase in prices may soon follow, however not yet for the following reasons:

Under the terms of the America Invents Act (AIA) fee increases cannot come into effect until 45 days after they are approved. That led to speculation by some that the agency might find itself in a showdown with Congressional Republicans if it tried to rush through the changes before the President-elect takes power. But, according to a source at the PTO, any final rule implementing the increase in fees will not be published until after the inauguration thereby averting a possible confrontation.

At the EPO, by contrast, we expect fees to suffer a decrease due to lack of demand in the coming years. Quality of EPs has definitely declined (EPO insiders always say so) and price hikes would only discourage pursuit/filing of new applications. Some very prolific applicants have not overlooked the EPO scandals. Without quality control we expect not just the social climate to tarnish the reputation of the EPO; there are technical concerns too.

According to this new blog post from IP Kat, an anti-HIV therapy patent has been partly thrown away by the EPO. “The patent was opposed by Merck at the EPO,” says the author, “but maintained in an amended form. That decision is under appeal, and the central amendment has therefore been suspended. In the meantime, Shionogi made an unconditional application to amend the UK designation of the patent in accordance with the claims maintained at the EPO. It also made two conditional applications to the Patents Court to amend. There are parallel proceedings in Germany and the Netherlands which are ongoing.”

This may mean that some structures for ensuring quality (control of scope) at the EPO are not entirely dead, but for how long? Opposition has become more expensive and window for opposition narrowed. This is a Battistelli (current administration) policy.

IAM, which says that the EPO is doing great on patent quality (because IAM is an EPO mouthpiece), has a new article in its ‘magazine’ in which it compares patent quality in Europe to patent quality in the US (probably not so different anymore, especially if one compares new EPO patents to new USPTO patents because they move in opposite directions and head for collusion).

Some patent lawyers wrote about this decision [1, 2] and the latter article noted the meaning of it: “The uncertainty related to situations where an inventor devises a particular invention, and then subsequently realizes that the particular invention may be extended to a broader scope that encompasses their first invention. Provided that a second patent application for the broader subject matter is filed within 12 months of a first patent application directed to the narrower invention, the second application may claim priority from the first application.”

There was also a little ode about this, posted in the form of a comment on an article at IP Kat the other day:

The jilted generation: One’s love is but only for the kittens’ kittens, and so on forward forever to the end of cat-dom – for the rest it is poison.

Summary: A roundup of news about software patents and demonstration of the sheer bias in the media, which is mostly controlled or steered by the patent microcosm rather than actual inventors

THE STATUS QUO of patentability of software at the US patent office isn’t too encouraging to those who have made a living by pursuing software patents, either as applicants or as patent agents.

“Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm).”What we’re observing these days is a lot of cognitive dissonance and cherry-picking, especially among patent agents and lobbyists of companies like Microsoft and IBM. They only see the ‘wins’ and refuse to see the ‘losses’. Take for example the new article (“Federal Circuit Takes A Common Law Approach to “Abstract Idea” Determinations in Alice Cases”) from the patent microcosm. It focuses on the Amdocs case and makes a case for software patents. Another such article, this one regarding Oracle, explains “How to Overcome Rejections Based on the Alice Decision” (“Highlighting the claim limitations helped Oracle avoid the Alice Rejection,” as the author put it in Twitter). They are still pursuing tricks and workarounds, seeing that PTAB and CAFC invalidate software patents faster than they can come up with new tricks and workarounds.

Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm). WIPRdid cover it and said:

The US Court of Appeals for the Federal Circuit has handed down a mixed patent ruling, in what is a successful outcome for Apple and Domino’s Pizza.

In a decision handed down yesterday, November 29, the court affirmed in part and reversed in part decisions by the Patent Trial and Appeal Board (PTAB) in three covered business method (CBM) reviews.

The decisions addressed the subject matter eligibility of certain claims of US patent numbers 6,384,850; 6,871,325; and 6,982,733.

We wrote about Ameranth not even a single time in the recent past (not a few times but none, in spite of us writing extensively on the topic for over a decade) and looking it up suggests that it’s known for almost nothing but litigation. It makes one wonder if the company is based just on litigation, i.e. flirting with “patent troll” status. We wrote about Ameranth last year and half a decade ago [1, 2, 3], always in relation to litigation.

Either way, some of its patents got invalided by PTAB (at long last) and as usual, as is so common among patent trolls, the patents are on software.

“The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm.”In other news sites, CAFC/PTAB killing yet more software patents got a short mention (only two paragraphs!). To quote: “A federal appeals court on Tuesday further narrowed the patents that Ameranth Inc can assert in litigation against dozens of companies that use online ordering systems, invalidating the few claims that had survived review by the Patent Trial and Appeal Board (PTAB) last year.”

The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm. Watch how they misuse language; terms like “attack” refer to reassessment of patents, PTAB is called “death squad”, and district courts taking the side of the defendants is “Patent Invalidity Offense” (as if the defendant is magically becoming the offender).

“The language of the patent microcosm sure is misleading.”They typically use words like “survive” (or “reinstated” in this case) when the offender/aggressor gets its way. Get it? Those who litigate and force others into courtrooms are merely “surviving”. Not the defendant. If the defendant/victim wins, then it’s said to be “attacking” the patent; it’s a “Patent Invalidity Offense”. The language of the patent microcosm sure is misleading. Roles or narratives are being inverted/reversed.

In other news from the docket, a US “court sua sponte vacated the prior district judge’s summary judgment order invalidating defendant’s advertising campaign analysis patents for lack of patentable subject matter because the asserted claims were not directed toward an abstract idea.”

This does not necessarily mean it’s the end of it. This just means a new decision will be issued. Given the possibility that it will be escalated upwards to CAFC, assume that these patents are likely invalid. If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it’s a lot more strict than district courts).

“If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it’s a lot more strict than district courts).”“Meanwhile,” says a new article from American Lawyer (behind paywall), “the U.S. Supreme Court in 2014 tightened eligibility standards for software patents” (that’s a factual statement).

“Although patents for things other than software are legitimate and have a clear purpose,” asserts the author, “software patents feel like a joke.”

“Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?”So are such patents “worth the time and effort”? Well, not anymore. Don’t trust what patent lawyers (sellers) say about software patents, as they know they mislead us. Watch what they wrote for IAM ‘magazine’ in the latest issue. The title is “Unlocking revenue opportunities in software patent portfolios after Enfish” and it’s behind a paywall. Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?

The lunacy deepens when one looks over at Watchtroll. “We are only just now starting to come out of the software patent wilderness with the Federal Circuit recognizing that at least some software is patent eligible,” this article says, but actually, more recently, CAFC pretty much invalided all software patents because of a decision from a prominent judge (whom Watchtroll personally attacked shortly thereafter).

It’s no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk. Here is one of them, the EFF’s “Stupid Patent Of The Month” for November. To quote:

Stupid Patent Of The Month: Movies From The Cloud

The Onion once ran a piece titled “I invented YouTube back in 2010.” The joke, of course, is that YouTube launched in 2005. This month’s Stupid Patent of the Month is just as ridiculous. US Patent No. 8,856,221, titled ‘System and method for storing broadcast content in a cloud-based computing environment,’ claims a mundane process for delivering media content from remote servers. This might have been a somewhat fresh idea in, say the mid-1990s, but the application for this patent was filed in 2011.

The patent suggests using “at least one server” that should have “a memory that stores media content and a processor.” The server then communicates with “a consumer device” that can send messages and receive content. Aside from these prosaic details, the patent makes only a half-hearted effort to distinguish its supposed invention from the massive array of cloud-based media services that already existed when it was filed. For example, the description suggests that existing services were inadequate because customers might pay a flat monthly fee yet make few downloads. The patent recommends tailoring customer cost to the content actually downloaded. But even if that was a new idea in 2011 (and it wasn’t), routine pricing practices should not be patentable.

Don’t expect the patent microcosm to ever accept what they are paid to be in denial over. Software patents are an abomination, they don’t promote innovation, but they certainly bring more income to some patent law firms. Here is Peter Brewer obsessing about “patent agent” (middleman) over at IAM and another person’s remark on evergreening, which is a great example of patent systems being misused to just infinitely guard monopolies, not promote innovation. Warren D. Woessner, a patent maximalist, obsesses over the new patent eligibility guidelines not because he wants scope to be narrowed but because he wants everything to be expanded. Also see this IAM “report” about CAFC. Why are these pieces dominating the news feeds and where are actual scientists in the news. They are being spoken about (by the patent microcosm) but not for. It’s a real problem. The same thing happens in social media sites.

“It’s no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk.”Consider this tweet from a patent attorney (“What does #TRUMP mean for patent eligibility? “Intellectual Property is HUGE!! Alice is a DISASTER! Let’s make patents great again!””).

Well, boosters would certainly wish for that. “Making patents great again” is also the title of one new article from IAM ‘magazine’, promoting the idea that resurrecting software patents is “great”. What they mean by “great” is more and more of them, i.e. patents of lower quality, hence not great at all.

“Don’t expect the patent microcosm to ever accept what they are paid to be in denial over.”Talking to patent lawyers who profit from patents on software at developers’ expense, Benjamin Henrion said that “software patents are a disaster for our profession.”

Well, they are great to the profession that is taxing software development by dragging software developers into courtrooms and expensive settlements that would not at all be needed if software patents didn’t exist.

No doubt the patent lawyers want software patents back and the employer of the above patent attorney also challenges Mayo right now. A few days ago it wrote that “[t]he Supreme Court’s current definition of a law of nature is scientifically incorrect. The analysis of this issue is quite complex, but I will attempt to summarize the issue. The Court’s definition in the Mayo case came down to: “the relation itself exists in principle apart from any human action. The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.””

“So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?”As one might expect, the firm does not agree with the Government Accounting Office and tries to dismiss it. It says this “report was prepared at the request of the House Judiciary Committee, which asked the GAO to examine trends in patent litigation and identify opportunities to improve patent quality. To address the latter, the GAO attempted to identify the factors that contributed to “low quality patents.” The GAO’s analysis of these factors was based primarily on a lengthy survey of USPTO patent examiners on various factors that affected the quality of the applications they examined.”

At the end of the day we have a conflict between scientists and lawyers. There’s no point denying it and perhaps it’s time for scientists to better organise for a better patent system — a system that puts science — not the revenue of patent law firms — first. █

Patent trolls, as we noted in the previous post, are a growing problem in China and UPC in Europe can also make them a growing problem in Europe, basically emulating the mistakes of the USPTO.

“”Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist.”IP Watch, speaking to LOT Network’s Ken Seddon, mentioned the problems associated with trolls on the first of the month, taking stock of the type of trolls that FTC spoke about (against) a couple of months ago. To quote: “Patent assertion entity (PAE) activity has skyrocketed in the past decade and much discussion has occurred around what to do in response to patent holders whose strategy is more focused on legal battles than innovating. One notable group has risen up to bring together global companies to address the PAE issue with a novel sharing approach. In an interview with Intellectual Property Watch, Ken Seddon, CEO and President of LOT Network, talks about the group’s rapid growth, what’s coming next, and how not to bring a squirt gun to a nuclear fight. ”

In our previous post we showed that Intellectual Ventures had expanded in China. Well, IAM continues to groom this troll, the world’s largest patent troll, which is Microsoft’s patent troll. See this promotional article and another new article which euphemistically calls patent extortion “NPEs” “monetisation”. “Working with” as IAM refers to it basically means agreeing to cooperate with an extortionist. IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…

“IAM makes patent trolls look so benign that it’s appalling if not disgusting. That’s what happens when the patent trolls pay IAM…”In other news, a network of sites published an article titled “How Big Law and Big Banks Took the Fight to Intellectual Ventures” [1,2], reminding us that Intellectual Ventures is very malicious and parasitic.

Speaking of Microsoft’s biggest patent troll, watch what Microsoft does with Nokia‘s patents other than extorting Android OEMs and passing patents to patent trolls like those that fund IAM. To quote the new article: “Under the terms of the agreement, HMD got exclusive rights to use the Nokia brand on mobile phones and tablets globally (except Japan) for the next 10 years, standard essential cellular patent licenses, software for feature phones…”

Those “standard essential cellular patent licenses” are among the reasons Microsoft ‘stole’ Nokia and now taxes a lot of the mobile industry using patents, even without selling any phones of its own. Not only Nokia’s patents serve to accomplish this goal. Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).

“Ericsson’s patents too have been weaponised and Ericsson essentially created patent trolls that even operate in Europe (London).”Recently, Ericsson’s most prominent patent troll (Unwired Planet) did some damage even to PTAB, which has been responsible for intercepting a great number of software patents in the US. We wrote quite a lot about it last weekend and for those who don’t remember, the Court of Appeals for the Federal Circuit (CAFC) ruled to weaken PTAB. More coverage on CAFC coming out in favour of this patent troll of Ericsson — and indirectly against PTAB scope of operation — came from legal-centric sites [1, 2] at the beginning of last week.

There was a time when I spent most Fridays–and occasionally also a Tuesday–in Mannheim (and on trains from Munich to Mannheim and back) to watch numerous smartphone patent trials. After coming to terms with a prohibition on making Internet connections from the courtroom (which prevented me from live-tweeting about the proceedings), I generally enjoyed my visits. I admired the depth of the judges’ technical understanding and their effective trial management (authoritative, but not authoritarian; highly facts-focused, but with a great sense of humor that I know other trial watchers also appreciated). There are, however, two notable exceptions from my fond memories: the incredibly dry air in the courtrooms and, more than anything else, the Mannheim judges’ take on what the obligation to license standard-essential patents on FRAND terms should mean for patent infringement remedies.

We certainly hope that these congregations of trolls, including those that try to tax every phone running Android, will be pushed back by courts. What we have here is a network of few large companies operating through patent trolls (i.e. resistant to lawsuits themselves), hoping to tax everything and everyone. Nobody benefits, except few rich people at the top. █

Summary: Challenging the false belief that the more patents society has the better off it will be, citing examples and news from north America

PATENT maximalism is a mindset if not a cult, promoted and spread mostly by those who profit from patent bureaucracy without creating anything (they don’t risk getting sued themselves). We often emphasise that in order for patent systems to maintain legitimacy (corporate and public support) they must ensure that patent quality is preserved (or attained/restored when lost). The interests of the wider public, or the externality, must be taken into account when defining boundaries for patents (patentability criteria). The same goes for copyrights and suffice to say copyright reformers now enjoy public support, which is why political parties like the Pirate Party almost gained control of Iceland last month.

“What is your take-away?”

That’s what a patent maximalist asked at the start of this month when he presented a new graph of his, showing “Provisional Patent Application Filings”. I responded by saying that “getting utility patents in the US is getting easier, as quality in this domain is reduced…”

An increase in the number of patents should never be considered good news (good luck explaining this to a lunatic like Battistelli!)… unless these patents are somehow truly indicative of increase in innovation. Otherwise these may simply be indicative of declining quality control (or broadened scope/domains). The same goes for examination in schools and colleges; it’s often said here in Britain that if more students pass or excel at exams (with average grades going up), then it simply means that the exams got too easy/predictable and thus a poor/inadequate measure/yardstick of skills, intelligence, etc. (incapable of distinguishing good students from lesser good students).

According to this new report from MIP, “2016 Canada IP Report reveals fall in patent applications”. Here is the gist of it:

2016 Canada IP Report reveals fall in patent applications

A report co-authored by CIPO reveals statistics on patent and trade mark filing and granting in Canada since 2016

The Canadian IP system remains strong and that trends of the past several years mostly continued into 2015, according to a report released by Innovation, Science and Economic Development Canada and the Canadian Intellectual Property Office (CIPO).

The 2016 Canada IP Report provides filing data and analysis of Canadian IP rights domestically and abroad. It focuses on comparisons of last year’s statistics to those since 2006.

Is that really a bad thing?

Maybe there are alternative paradigms for interpreting this data. Later on (probably this weekend) we shall show what a mess the Chinese patent system is becoming due to SIPO’s terrible policy (we’ve already alluded to this in our previous post).

The patent maximalist now conveniently conflates patents with “property” (“Patent Law vs Property Law” — along the lines of the misleading term “Intellectual Property”), as if the more you have of it, the better. Pieces of paper that can be photocopied or whatever are hardly equivalent or equitable w.r.t. physical things. Moreover, with software patents, many of these papers describe things that are not physical, either. This kind of lunacy which is calling patents “property” needs to end in order to us to recognise what patents really are: a temporary, government-granted monopoly, given in exchange for publication (or dissemination) of ideas. I am not against patents, but I recognise their limitations and I believe that patents need to be few and defensible (in the broader societal interest/context).

Consider this new paper from a patent reformer/ist, Professor Mark A. Lemley. Watch what happens when patent maximalism goes out of hand. “Inventor Sued for Infringing His Own Patent. You Won’t Believe What Happened Next” is the title of the paper and here is the abstract (with our emphasis added):

The Supreme Court and the Federal Circuit have repeatedly emphasized the public interest in testing the validity of patents, weeding out patents that should not have been issued. But there is one important group of people the law systematically prevents from challenging bad patents. Curiously, it is the very group patent law is supposed to support: inventors themselves. The century-old doctrine of assignor estoppel precludes inventors who file patent applications from later challenging the validity or enforceability of the patents they receive. The stated rationale for assignor estoppel is that it would be unfair to allow the inventor to benefit from obtaining a patent and later change her tune and attack the patent when it benefits her to do so. The Supreme Court has traditionally disfavored the doctrine, reading it narrowly. But the Federal Circuit has expanded the doctrine in a variety of dimensions, and applied it even when the benefit to the inventor is illusory. Further, the doctrine misunderstands the role of inventor-employees in the modern world.

More important, the expansive modern form of assignor estoppel interferes substantially with employee mobility. Inventors as a class are put under burdens that we apply to no other employee. If they start a company, or even go to work for an existing company in the same field, they will not be able to defend a patent suit from their old employer. The result is a sort of partial noncompete clause, one imposed without even the fiction of agreement and one that binds anyone the inventor comes in contact with after leaving the job. Abundant evidence suggests that noncompetes in general retard innovation and economic growth, and several states prohibit them outright, while all others limit them. But assignor estoppel is a federal law doctrine that overrides those state choices.

It is time to rethink the doctrine of assignor estoppel. I describe the doctrine, its rationale, and how it has expanded dramatically in the past 25 years. I argue that the doctrine is out of touch with the realities of both modern inventing and modern patent law, and that it interferes with both the invalidation of bad patents and the goal of employee mobility. Should the Supreme Court take up the doctrine, it is unlikely to survive in its current form. Rather, it should – and will – return to its much more limited roots.

Stop patent maximalism at the EPO, the USPTO, and everywhere else. It has become an impediment to progress (or “innovation” — being the more popular buzzword among law firms) and thus antithetical to the whole basis of patent systems. █